M. Strobel, Attorney
In the course of the last few years the Swiss authorities have started to apply the rules and regulations on public procurement in an even more stringent way. Jurisprudence has also become more consistent.
Some issues which pop up regularly in the course of such procurement procedures are: “dumping” bids, changes of the bid during the procurement procedure and the prior involvement of the bidder awarded with the contract.
The latter topic (prior involvement) is one which is often not considered (enough) by bidders and authorities when initiating the procurement process. Prior involvement leads to the exclusion of the according bidder form the public procurement process if the bidder (i) has been involved in the elaboration of the basic principles of a project, (ii) has drafted (partly or in total) the tender documents or (iii) evaluated other bids.
The procuring authorities – but also bidders – very often need the assistance i.e. the knowhow of specialized consultants or experienced companies. From elaboration of the tender documents through the evaluation of bids. Such consultants and companies quite often submit a bid themselves. Knowing the potential problems which such bids may create some authorities started to officially inform all the other bidders of the situation in the tender documents. The authorities even asked the other bidders to waive their right to an appeal!
This approach was not approved by the courts. Such public procurement procedures have to be stopped and restarted.
Prior involvements are severely punished by the courts and nowadays even the semblance of a prior involvement may lead to an annulment of the procurement procedure.
As a bidder it may well be worth to lodge an appeal if one gets the impression that another bidder has already been involved before.